FREEDOM OF INFORMATION

LAWS IN TEXAS

Legislation Impacting Newsgathering

and Open Government

2009 Legislative Update – 81st Regular Session

Paul C. Watler
Jackson Walker, LLP,
901 Main Street, Suite 6000
Dallas, TX 75202
(214) 953-6069
pwatler@jw.com
 Texas Legislation Impacting Newsgathering
and Open Government

2009 Legislative Update – 81st Regular Session

By Paul C. Watler1
Jackson Walker, L.L.P.
901 Main Street, Suite 6000
Dallas, TX 75202
(214) 953-6000
pwatler@jw.com

I. Introduction

Texas finally joined the modern era of states enacting a journalist’s shield law with the passage
of HB 670 by the 2009 Legislature. The bill was the most significant impacting newsgathering
and open government from Austin this session.

In the open records realm, legislators continued to chip away at the public right to know by
excepting more information from disclosure, largely justified as resting on concerns for the
safety or privacy of public employees. Open government advocates did enjoy some successes in
playing defense under the Texas Public Information Act, most notably blocking bills that sought
to close the DOBs of government employees from public access.

The discussion below summarizes significant legislation affecting newsgathering or open

government that was passed by the Legislature and signed into law by the governor.

II. Texas Free Flow of Information Act

With the 81st Legislature’s enactment of HB 670, Texas joins 37 other states and the District of
Columbia in safeguarding the free flow of information to the public by protecting the rights of
sources to provide information and the rights of journalists to gather and communicate the news
without unwarranted intrusion.

Under the bill in civil cases, the journalist’s privilege could be overcome only in narrow
circumstances. The statute requires a clear and specific showing that alternative sources have
been exhausted, that the subpoena is not overly broad, that reasonable notice was provided to the
journalist, that the interest in disclosure outweighs the public interest in news gathering and
reporting, and that the information is essential to the proceeding.

1
Mr. Watler, a partner in the litigation section of Jackson Walker, LLP, is a board certified civil trial lawyer and was
president of the Freedom of Information Foundation of Texas from 1996 to 1999. He is listed in the Best Lawyers in
America in the categories of First Amendment law, bet-the-company litigation and commercial litigation.

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In criminal cases, the Texas shield law includes limited exceptions involving a journalist as an
eyewitness to a felony, a person confessing a felony to a journalist, where probable cause exists
that a confidential source committed a felony and the prosecutor has exhausted all efforts to
obtain the source’s identity, or if disclosure is necessary to prevent certain death or substantial
bodily harm.

III. Texas Public Information Act (Direct or Indirect Amendments2)

HB 1360
Prosecutor’s Disclosure to Defense Counsel
Amends Code of Criminal Procedure art. 38.02 to provide that the release of information related
to the pending or reasonably anticipated prosecution of a criminal case by the state attorney to
defense counsel would not constitute a voluntary release of information under the Texas Public
Information Act

HB 2730
School Employee Criminal Background Check
Amends the Government Code to provide that any information that could reveal the identity of a
person about whom criminal history record information is requested and information that directly
or indirectly indicates or implies involvement of a person in the criminal justice system obtained
by a school district in connection with mandatory criminal background checks of employees is
not subject to disclosure under the TPIA.

HB 3544
E-Mail Public Comment
Amends TPIA § 552.137 to provide that an email address is not confidential when used by a
member of the public for the purpose of providing public comment on or receiving notices
related to an application for a state license, or receiving orders or decisions from a governmental body.

Medium for Public Information

Amends TPIA § 552.228 to provide that if public information is not available in the medium
requested by the requestor, the governmental body no longer has the option to provide a paper
copy. Rather, public information must be produced in “another medium that is acceptable to the
requestor.”

SB 375
Accident Report Information
Amends Transportation Code § 550.065 to provide for the confidentiality of the names and
identifying information listed in motor vehicle accident reports compiled by the Texas
Department of Transportation, but allows the Transportation Department to release aggregate or
statistical information.

2
Information is often excepted from disclosure under the TPIA or made confidential by amendments to laws other
than the TPIA itself. Therefore, this outline discusses notable changes through both direct and indirect amendments
to TPIA.

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SB 1068
Redaction Without Attorney General Opinion
Amends §§ 552.024, 552.1175, and 552.138 to provide that no Attorney General opinion is
necessary to redact information excepted under these sections, but the governmental body must
provide written notice to the requestor that the information has been redacted, a description of
the withheld or redacted information, citation of the applicable basis for the redaction, and notice
to the requestor and instructions on the right to seek an Attorney General’s opinion.

Excepting Information Posing “Substantial Threat of Physical Harm”

Enacts new TPIA § 552.151 providing that information regarding government employee or
officer is excepted if, under specific circumstances pertaining to the employee or officer,
disclosure of the information would subject the employee or officer to a substantial threat of
physical harm.

SB 1071
Public Pension System Trustees and Employees
Enacts new TPIA § 552.0221 providing that information regarding employees and trustees of a
public employee pension system, including relating to their income, salary, benefits and bonuses,
is public information.

SB 1182
Hospital District Employees
Enacts new TPIA § 552.150 authorizing withholding information that could reasonably be
expected to compromise the safety of an employee or officer of a hospital district where the
employee submits a request in writing with specifics on why the information should be
withheld. (This amendment is subject to a sunset provision terminating its effectiveness in
2013.)

Bio Agents
Enacts new TPIA § 552.151 authorizing withholding of information related to a biological agent
or toxin identified or listed as a select agent under federal law, specifically: (a) location of select
agent; (b) people in chain of custody for the select agent; and (c) identity of people authorized to
possess select agents.

SB 1629
Media Carve-out From Research Cap Extended to Magazines and On-line Newspapers
Amends TPIA § 552.275 to add magazines and on-line newspapers to the list of news media
excepted from Section 552.275’s required prepayment to a governmental body for requests
requiring large amounts of agency personnel time.

IV. Texas Open Meetings Act

HB 1783
Amends Utilities Code Sec. 412.204 to require the Public Utilities Commission and ERCOT to
broadcast public hearings and meetings online.

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SB 1182
Enacts TOMA § 551.0415 to exempt from agenda notice requirements municipal governing
body discussions regarding expressions of thanks, congratulations, or condolence; information
regarding holiday schedules; an honorary or salutary recognition of a public official, public
employee, or other citizen; a reminder about an upcoming event organized or sponsored by the
governing body; information regarding a social, ceremonial, or community event; and an
imminent threat to the public health and safety that has arisen after the posting of the agenda.

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